DAS CATHERINE ANTHONY v. TORTURE CLAIMS APPEAL BOARD

HCAL 2467/2018

[2022] HKCFI 874

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2467 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;     or
	consideration of the documents and oral submissions by the Applicant in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 59-year-old national of India who first arrived in Hong Kong in 1984 with permission to work as a foreign domestic helper during her employment contract, but when her last employment was prematurely terminated in 2003, she did not depart and instead overstayed in Hong Kong since 19 December 2003, and more than 10 years later on 9 October 2014 she surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to India she would be harmed or killed by her abusive husband. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Kamraj Nagar, Maharashtra State, India. She worked as a domestic cook in her home village before coming to Hong Kong in 1984 to work as a foreign domestic helper.

3.  In the late 1990s she returned to India to undergo a family-arranged marriage with her husband whom she had never met before, and thereafter she returned to Hong Kong to continue with her employment, visiting her husband in his home in Khandala in India in her annual holidays during which they frequently had fights and quarrels, and on one occasion in late 2001 she was beaten so badly by her husband that she had a miscarriage.   

4.  After that incident the Applicant returned to work in Hong Kong in September 2001, and shortly thereafter she was told by her mother-in-law that she had been divorced by her husband in India, and that it was no longer necessary for her to return to see her husband for fear that he might kill her, and hence the Applicant had since ceased all contacts with her husband, but when her last employment was terminated in 2003, she was afraid to return to India for fear of being harmed or killed by her husband, and so she overstayed in Hong Kong until October 2014 when she surrendered to the Immigration Department and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 26 January 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

5.  By a Notice of Decision dated 21 February 2017 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

6.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of her being harmed or killed by her husband whom she had not seen nor contacted for more than 15 years, that there was no evidence of any intention of her husband to kill her other than what she had been told by her mother-in-law years ago, that in any event it was a private domestic dispute between her and her husband without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in India with a large population of 1.2 billion people spread across a vast territory of more than 3.2 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of India away from the home district of hers or her husband’s in large cities such as Mumbai where it would be difficult if not impossible for her husband to locate her.

7.  On 2 March 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 3 July 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 7 August 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board accepted that the Applicant’s marriage with her husband had been an unhappy one due to the frequent abuses and assaults by her husband and that they had had no further contact with each other since 2001, but found no reliable evidence of any real threats from him other than some hearsay from her mother-in-law, that in any event it was highly doubtful that after more than 17 years that her husband would still have any adverse interest in her upon her return to India, and that with reasonable internal relocation for her to move safely to other area away from her husband’s home district without any real risk of being located that her claim for non-refoulement protection failed on all applicable grounds.  

9.  On 5 November 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affidavitof the same date she put forward various grounds for her intended challenge which may be summarized as follows:

(1)   That the Adjudicator failed to apply high standards of procedural fairness in holding an oral hearing for the Applicant’s appeal in particularly when the Adjudicator sought to challenge the Applicant’s credibility that an oral hearing was warranted in order to satisfy the tribunal’s obligation of procedural fairness;

(2)   That the Adjudicator took account of irrelevant considerations in assessing the Applicant’s claim rendering a refusal decision;

(3)   That the Adjudicator had failed to take account of all the COI material in the hearing bundle in rejecting the basis of the Applicant’s claim and in his findings of no genuine threat against her, that she could live in other places in India, and that internal relocation was a viable option; and

(4)   That the Adjudicator had significantly relied on the source of news that was not officially recognized or was hearsay or outdated, and with the lack of credible source of information that had resulted in him making groundless speculations as if it were his own personal assessment.  

10.  Her complaint under Ground (1) is clearly factually incorrect as the Board did in fact hold an oral hearing for her appeal during which the Applicant was able to give oral evidence for her claim and answered questions raised thereof by the Adjudicator for the Board, and that it is also clear from the decision that the Board did not raise any real issue as to the credibility of her claimed abuses by her husband and had accepted that he might have made threats against her years ago as the basis of her claim. As such there is simply no basis in this complaint of the Applicant at all.

11.  As for the rest of  her complaints under Grounds (2) - (4), they are all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they apply to her case or how the Board or the Adjudicator had erred in the decision, or in what way did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what groundless speculations that the Adjudicator had made regarding her claim, or which source of information relied on by the Adjudicator were not officially recognized or were hearsay or outdated. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for her intended challenge either.

12.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

13.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of India, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

14.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

15.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse her leave application.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1